The White House and Mr. Specter hastily arranged the visit after an uproar over Wednesday's release of a 1985 memorandum reflecting Judge Alito's passionate belief that Roe v. Wade, the Supreme Court's landmark abortion decision, should be overturned....

[A] colleague of Judge Alito, Judge Edward R. Becker of the Third Circuit, who is also a close friend of Mr. Specter, said Friday that the memorandum did not reflect Judge Alito's approach on the bench, which he said was to look "at every case anew with an open mind."

"It is not the Sam Alito I know," Judge Becker said. "People don't understand what happens to you when you become a judge. When you take that oath, you are transformed. You are a different person. You have a solemn obligation to be totally impartial and fair."

Mr. Specter said that was the point Judge Alito made in their meeting.

He said the judge "raised a sharp distinction, as he put it, between his role as an advocate and his role as a judge," adding, "And with respect to his personal views on a woman's right to choose, he says that is not a matter to be considered in deliberation on a constitutional issue of a woman's right to choose, the judicial role is entirely different."

And the NYT has this editorial, expressing a lot of skepticism but stopping short of rejecting the nomination. Its bottom line is the same as Specter's: "The Senate needs to look through the cloud of explanations and excuses and examine where Judge Alito really stands on abortion rights." That is, we know with some assurance what he thinks of abortion. The question for a judge is what he thinks about rights.

Judge Becker says, "People don't understand what happens to you when you become a judge. When you take that oath, you are transformed." Well, people quite rightly don't "understand" that you become "transformed" into some inhuman machine that can generate purely legal reasoning. Efforts to convince us that you undergo a complete transformation fail because we are not dupes. We've trained ourselves not to believe assurances about the pure motives of those who would take power. But some transformation must take place, if we are talking about a human being who has enough moral character to be considered for the position in the first place. We also go wrong if we imagine that judging is nothing but repackaged politics.

Still, if we know a judge's attitudes will surely, if subtly, affect decisions, we've got to worry when the nominee has clearly expressed personal hostility to a right we care about. The fight to deprive women of the control over the insides of their own bodies has gone on too long already. Now, we are threatened with a new surge of legal attacks, as a newly configured Court revives the hopes of the opponents of abortion rights. I've supported the Alito nomination because I recognize the significance of the President's appointment power and because Alito is clearly an accomplished man of excellent character. But I do think he needs to demonstrate a commitment to the structure of constitutional rights that we have counted on for so many years.

UPDATE: Let me add a word about the fact that Alito has taken various positions as a legal advocate and not simply as a private individual. Aren't his ideas about abortion, expressed in legal writing, as an advocate, something that relate to abortion rights and not simply to abortion? An advocate has a goal in mind and, in pursuit of this goal, searches for legal arguments that might persuade a court. What an advocate does with legal texts and arguments is different from what a judge does. Advocates don't really think their arguments are the best answers, just that they are professionally arguable and would produce the desired results. If you asked the advocate to be honest and say what he would decide if he were the judge, assuming this advocate was honest and ethical, he would often admit that he would reject his own argument. Thus, Alito can properly distinguish the arguments he supported as an advocate with the goal of overturning abortion rights from the opinions he would reach as a judge.

60 comments:

I understand the reasons why Ann supports Alito, but I just don't trust the man. It's pretty clear that he's a committed ideologue with hostility to women's rights, individual's rights (his consistent pro-police rulings and memorandum where he expressed his view that police power should be greater), separation of church and state (his expressed views that the Court went too far in separating church and state).Personallly, I do not support affirmative actions programs so I have no problem if Court invalidates them. But the issues of personal freedom and freedom from excessive religiosity in the public space are important to me. I have no confidence at all that Alito will do anything to protect these rights, on the contrary, I am sure that he'll erode them.Yes, judging is not 100% politics. But a nominee's personal views play a big role in such decisions as interpreting the 1st amendment, the due process clause, etc. The text of the Constitution itself allows judges a big latitude in interpreting the Constitution. Here, we have a committed ideologue who went into public sphere with an express purpose of changing the constitutional law. He himself stated that he'll do everything he can to overturn or sharply limit Roe, to increase police power, and to lower the separation of church and state. To me, it's more than enough to oppose him. Yes, the President deserves a lot of deference in his appointment powers. But when the nomination is so nakedly political, opposition on purely political grounds is perfectly acceptable.

Whose rights -- the mother's, the child's or both? Why is any one of these framings of rights the correct one for a SC justice to use? Woman's control over her own body vs. child's right to life doesn't seem like a question best resolved by courts.

Why respect Roe? I don't see why it would be bad if Roe were overturned and regulation of abortion returned to state legislatures where it belonged in the first place.

To those who doubt the extent of Alito's pro-police views here's a portion of his 1984 memo:

Alito wrote that he saw no constitutional problem with a police officer shooting and killing an unarmed teenager who was fleeing after a $10 home burglary. "I think the shooting [in this case] can be justified as reasonable," Alito wrote in a 1984 memo to Justice Department officials.

Because the officer could not know for sure why a suspect was fleeing, the courts should not set a rule forbidding the use of deadly force, he said.

"I do not think the Constitution provides an answer to the officer's dilemma," Alito advised.

A year later, however, the Supreme Court used the same case to set a firm national rule against the routine use of "deadly force" against fleeing suspects who pose no danger.

"It is not better that all felony suspects die than that they escape," wrote Justice Byron White for a 6-3 majority in Tennessee vs. Garner. "Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."

The 4th Amendment forbids "unreasonable searches and seizures" by the government, and the high court said that killing an unarmed suspect who was subject to arrest amounted to an "unreasonable seizure."

Said White: "A police officer may not seize an unarmed, nondangerous suspect by shooting him dead."

Will conservatives who believe a judge putting on a robe is "transformed" into an impartial referee of the facts give the same credit to reporters who may have beliefs they consider too liberal since journalists generally subscribe to the idea of giving all sides a fair shake?

Ann wrote "But I do think he needs to demonstrate a commitment to the structure of constitutional rights that we have counted on for so many years."

If you believe as I do that Roe was a really cruddy piece of Constitutional "reasoning", making up a right from penumbras and emanations, the passage of time doesn't gild that lily. I want a judge who demonstrate a commitment to the constitutional rights that are in the constitution rather than in his (or her) philosophy. It is true that many people have come to depend on such "rights" but then a lot of people came to depend on separate but equal in the 60 odd years between Plessy and Brown too...and you know the rest.

I guess I'm always a little cautious about the word ideologue, because it is so loaded these days and gets tossed off rather cavalierly (and no, MARK, I'm not accusing you of that--I don't believe that's what you're doing here, actually).

The definition (and of course, we can Google many) I associate with that word is "blindly partisan advocate or adherent of a particular ideology."

I'm going to tread lightly here, because I'm not a lawyer and assuredly have not read the vast number of opinions and materials that most of you all have.

But, temperamentally at least (and in this case I'm referring to both mind and personality), Alito doesn't strike me as "blindly" partisan. He seems more thoughtful than that, to this layperson at least. (Think about some of the other potential Supreme candidates that were pushed forth by the truly ideological, but then skipped over for nomination.)

He may actually be one of those rare individuals who can "hold two thoughts in his mind at once", and if so, isn't that exactly the sort of person we want in our courts? Whether this is so or not is what I'm most hoping to find out as we go through the hearing process.

Ann: I don't think he should hide his views. Nor do I think legislators should encourage judges to decide issues that should be handled by legislatures. Unhappily the political system's incentives are against me on both counts.

I guess my comment is whether the structure of constitutional rights that we have gotten recently are truly rights that are in the constitution. In that case then I don't think he should support them if the constitution does not really contain these rights but they are instead based on ideologues of the other side. I think that ideologues of both sides who have so politicized this process should be severely questioned or neither should. I look at the questions that Ginsburg refused to answer and got away with it and think that Alito should have the same privilege. After all, she was far more politically aligned that Alito is when she came before the Senate and her questioning essentially was nothing. Her political background was far more troubling to a conservative than Alito's to a liberal so why all the questioning now?

Personally I would a whole lot rather see some of the recent decisions kicked back to the state courts where they belong than have rights formulated out of nothing or decisions based on international rules as we have recently.

Either way, this is probably "Pro-Life's last hurrah", right? I mean, if both Roberts and Alito (or even if either of them) end up becoming a reliable vote in favor of Roe, we'll still have only two or three votes against Roe with two-ninths of the court changed for a long time to come. Sure, Stevens and Ginsburg could both leave and both be replaced by pro-lifers, but if not, this precedent is going to stand at minimum another 20 or 25 years. By then, most Americans won't even have been born when Roe was decided- it'll pretty much be settled law. This is their last chance.

Not that I really care either way. I am not a woman, and so any decision doesn't really affect my life much either way (I also live in Illinois, and so abortion would be available after Roe as well). But I must say as a small-government libertarian type who's mildly (but apathetically) pro-choice, I do believe Roe benefits politically the party who is supposed to nominally represent my interests. Even pro-choicers like me have a tough time swallowing propositions that if I happen to impregnate my girlfriend (or fiancee, or wife), whe could terminate what is my child without so much as even telling me and allowing us to have a discussion. I'm not anti-abortion, but it's little absolutes like that on the pro-choice side that turn me away from the message.

In the end (based on absolutely nothing except what we've heard), Roberts will be somewhat pro-Roe with certain Caveats, and Alito will be against it. That doesn't matter. Social conservatives are running out of time.

Dick,I disagree that Ginsburg was more troubling to a conservative than Alito is to a liberal. Ginsburg was a consensus candidate, proposed by none other than Orrin Hatch, a very conservative Republican Senator from Utah. In fact, during her tenure at DC Appeals Court, Ginsburg aligned herself with conservatives on that court more often than she did with liberals. And even during her tenure at the Sup. Court, she demonstrated that she's no flaming liberal. In contrast, vast majority of Alito's rulings and stated views betray his deep disagreements with most of the "progressive" constitutional law jurisprudence. Mark my words, if he's on the Court, he'll probably be to the right of Scalia.

ALito's memo is not controversial. In 1984 ALito's view was the view of many states and was settled common law principle for hundreds of years. DOn't we want judges who will stick to precedent? Oh wait! only if it fits your worldview!

The officer in Garner was not found liable since he did not violate the law. SCOTUS changed the law from then on. I bet ALito's memo in 1986 -- post Garner would've said something different since they wouldn't have been able to make such an argument "reasonably".

Unless you're a badass all the time, the police make it possible for you to do whatever it is you do. You might show a little respect unless you think judicial rights just enforce themselves. Who are you going to call to drag all those offensive baby Jesus's out of town sqaure? :-) I kid, sort of.

I don't know the specifics of your logic that the mann should have some say in the abortion, but I do know that of others.

It always strikes me as ironic that rightwingers who pride themselves on a nonsentimental reality and also strongly stress the differences between the sexes should find something so unfair in women being able to terminate pregnancy to the extent that is legal without another's approval.

Actually it no longer strikes me as ironic or anything because I've learned the right is seriously devoted to being victims of victims, these victimes are everywhere and continually opporess them... indeed listening to O'Reily and Limpbowel it is the most awful tyranny in history carried out by those same dastardly women who are going to trick poor helpess men into making them pregnant and then make them pay child support.

Well let's get down to differences in sex. Women have the physical burden of pregnancy. As such they have certain rights in regard to it. The burdens are unequal and thus technically the balance is unfair.

Because of course this same wman has the right to make a father pay some of the cost even if he didn't want a child. Why? Well birth control fails so there is no way to completely avoid a pregnancy and if he really wants to a man can get a vasectomy.

And will that's just the way it is. Because you need some rules and none of them are completely fair and on balance giving a man who a woman may no longer be with, who may have abused her, decision making power or even the right to intrude into her often difficult making decision making is considered by most of us to put an unnecessary burden on the one already carrying the burden.

Now note, the vast majority of women do want to discuss the pregnancy with the man who made them pregnant, just as very few go out and entrap men into fatherhood.

But for men, guess what bud, welcome to reality there are lots of tough and kind of unfair things out there. In the real world you exercise caution against all kinds of dangers. And one basic is to have a good idea of who a woman is, her sense of honor etc. before you sleep with her. your odds of trouble go way, way down.

But instead we have a lot of rightwingers arguing that if you let your penis direct you into an affair where you don't know and trust each other; and the woman makes you pay for the resulting child or terminates a pregnancy without your aspproval you've been deeply wronged by the liberal conspiracy which secretly controls eeverything and against which you futilely battle.

To use an analogy you guys expect to be protected from harm when driving with your eyes closed. This sounds like the utopian make believe the left is accused of.

Robert: Roe has been restated by the Court in more solid terms. In any event, stare decisis matters, and individuals who have been told they have a right have an interest in preserving it. It is outrageous for the Court to claim an extra power to revoke rights based on the low quality of its own writing. Roe has been reexamined repeatedly and affirmed. Women's equal participation in modern life is premised on control of their bodies' capacity to become pregnant. Threatening to take that away ought to cause great alarm. I understand the strong moral feeling against abortion, but it should be channelled into the work of persuading women not to have abortions, not strongarming us into unwanted pregnancy.

"...a lot of people came to depend on separate but equal in the 60 odd years between PLessy and Brown too..."

There is a big difference between taking away an established constitutional right versus SCOTUS clarifying or recognizing a constitutional liberty-- (which Brown did).

I have to disagree with your characterization of Plessy and Brown. Prior to Plessy many African Americans fought law suits attempting to establish their equal rights to public transportation. (circa 1865 onwards...Ida B. Wells, ect.) Becasue of _Slaughterhouse_ 14th Amendment rights were gutted.

Plessy did not take away a constitutional right previously established by SCOTUS. Particularly from the daily experience of liberty, African Americans could not rely upon equal access to public transportation from the 1860s through Plessy. (Although many lawsuits and heroic people tried to establish this right.)

The correct analogy would be the reversal of _Brown_. A removal of a established right would be SCOTUS determining that under the 14th amendment the constitution did not recognize the right of all citizens to ride first class in a common carrier. Taking away that right, after the population had experienced it for years, is the result of removing a constitutional liberty.

People who supported Plessy's interpretation of "separate but equal" were segregationists who depended upon the limitation of civil rights. They did not "depend" on the establishment of a right by SCOTUS, but, rather segregationists relied upon the denial of a capacious view of the 14th Amendment.

While I do think women should have the right to abort a baby at least early on in a pregnancy, I also think it would - in the long run - be good for America to overturn Roe.

I am sick of every election in this country being dominated by abortion, abortion, abortion. My entire life it's abortion blah blah blah, and it never changes. I am sick of the hardcore pro-lifers and pro-choicers and the way they turn every election and judicial nomination into the same old abortion stuff.

If the Court overturned Roe, the debate of abortion would be turned over to the people to work things out democratically. This might scare people, but it really is the only way to eventually end the near civil war climate over this issue. It also would allow us to have judicial confirmation hearings that are about something other than abortion or anti-abortion litmus tests.

Overturning Roe, IMO, would reduce the power of hardcore pro and anti abortion groups. Republicans, in particular, would have to feel the pain of voters if they take away rights that the people want. Indeed, many believe the Republicans secretly don't want Roe overturned because it would be horrifying to them politically.

I understand that people have replied on Roe for decades, but nothing is ever gonna change on the abortion debate in this country for as long as Roe is the law. The fact that so many people believe they have the right to abort tells me that if Roe were overturned you'd see Republican politicians suddenly becoming moderates on the issue overnight.

Well, no, not really. The Amendment clearly states that if you are born in the United States you are a citizen of the United States. This section of the 14th Amendment is more relevent to immigration cases then to the legal analysis SCOTUS uses on abortion cases.

The argument in _Slaughterhouse_ revolved around the "privileges and immunities clause" in the 14th Amendment. In Roe, Casey, Griswold, ect. the court generally refers to the 14th Amendment's "liberty" clause.

Nick said:

"Abortion is not a "right" defined in the constitution. Roe v. Wade should be judged as an overstep of judicial power."

SCOTUS says that abortion is a right as defined by the constitution.

I'm not saying that you don't have the right to believe that SCOTUS is wrong and has been wrong since 1973.

I mean that abortion is under Roe, Casey and a bunch of other cases, considered to be a constituitonal liberty. It is a fact that SCOTUS has considered abortion a constituional right since 1973.

All American women who are 40 years old and younger have known this for their entire fertile years. It is a constitutional liberty that is embedded in our social practice and in our daily lives.

A large portion of our population think that this right will never be overturned. I know women in their 20s who have stated that very thing. "Roe will never be overturned." They are completely confident that the court will never overturn abortion as a constitutional right. Many moderates and independents believe this to be true.

(I am not including myself. I have no confidence that SCOTUS will stand by stare decisis.

SCOTUS might overturn it, and it might not. It depends on who is appointed to the court, and what those very powerful individuals decide to do.)

Troy -- you are dead wrong (pardon the pun). Fact: the common law never allowed people to use deadly force except to protect others. The common law did not permit officers of the crown to use deadly force solely to apprehend a fleeing criminal, at least since the abolition of death as a sentence for all felonies. If you want to go back to those days (which predate by some time the founding of our republic), I invite you to make that argument in public. Otherwise, get your facts straight.

Ann -- funny that you supported George W. so much for so long and now you are waking up to what is simply a logical result of his reelection: the overruling of Roe v. Wade. Women's uteruses will soon be property of the federal government. Enjoy. You, Ann, helped create it with your shilling for the Bush administration during the month before the election on Instapundit. (And don't give me the BS about some states will have some laws, and others will have others. The second Roe is overturned, Congress will pass a statute pursuant to the Commerce Clause outlawing all abortion. See Raich v. Ashcroft.)

Ann, a vast majority of women believe that abortion should be illegal months before viability. 72% of women believe that second trimester abortions should generally be illegal (with exceptions for rape, life of mother, incest, or severe physical health problems). So, the idea that women support and depend upon every jot of Roe v. Wade is simply false.

I don't see why this thing can't be turned back to the states (Congress can regulate the abortion business too, under the commerce clause). I say that as someone who staunchly supports women's rights. Women don't have to run the risk of pregnancy. No one would be forcing anyone to get pregnant. At nine weeks the baby has fingerprints, a heartbeat, all organs formed and functioning, and then there's a fundamentall right to rip it apart for another three or four months, for any reason at all? This seems really messed up to me. I mean REALLY messed up. And that's the way a vast majority of American feel.

He may actually be one of those rare individuals who can "hold two thoughts in his mind at once", and if so, isn't that exactly the sort of person we want in our courts? Whether this is so or not is what I'm most hoping to find out as we go through the hearing process.

Exactly.

And well-done for defining 'ideologue' even if via Google, Reader_Iam.

The way I have always understood it is an idealogue is someone who sticks to an ideology so completely, as to ignore even correct points from another side of the argument.

If people want to call others who hold particular views on a topic, partisans, fine, but ideologue is a terminology a road too far.

Just thinking out loud ... as one of the great unwashed out here.

Oh come now, R/I.

Save this for the Ivy League circuit.

We're all just folks here, and anyone who thinks otherwise is fooling him/herself.

Cinncinatus: Take the time to read my old posts before spouting such absolute garbage about me! You are not familiar with my ideas at all. I should delete your comment for being so abjectly ignorant, but I will leave it as a testament to you disrespect and presumptuousness.

UPDATE: Let me add a word about the fact that Alito has taken various positions as a legal advocate and not simply as a private individual. Aren't his ideas about abortion, expressed in legal writing, as an advocate, something that relate to abortion rights and not simply to abortion? An advocate has a goal in mind and, in pursuit of this goal, searches for legal arguments that might persuade a court. What an advocate does with legal texts and arguments is different from what a judge does. Advocates don't really think their arguments are the best answers, just that they are professionally arguable and would produce the desired results. If you asked the advocate to be honest and say what he would decide if he were the judge, assuming this advocate was honest and ethical, he would often admit that he would reject his own argument. Thus, Alito can properly distinguish the arguments he supported as an advocate with the goal of overturning abortion rights from the opinions he would reach as a judge.

Related: this is precisely why I think law professor bloggers (i.e. Glenn Reynolds, Powerline, et. al.) think its okay to lie about the war. They do not feel they need to tell the entire truth, but that the entire truth is the responsibility of the hegelian dialectic.

Us stupid software engineers have another word for someone that will due, say, argue, design, code, just what the client wants and for money regardless of our actual beliefs.

Of course, Alito can distinguish between his position as an advocate and his position as a judge. The problem is he really believes in the positions that he advocated and given his stated desire to move the law in his favored direction, that's exactly what he'll do. In my opinion, it requires extreme naivety or willful disregard of elementary logic to think that Alito will do anything but try to significantly push the law to the right. Why do you think he was chosen in the first place? Why is religious right so fond of him? He already stated in his interviews with senators that, in his view, the sup. court went too far in separating church and state. Do you have any doubts about what side will Alito be on in Establishment clause cases? I don't. Get ready for more expressly religious symbols in public arena, since a lot of Supreme Court cases dealing with this topic were 5-4 with O'Connor on the sane side (i.e., equality of religion and irreligion). I am afraid that with Alito replacing O'Connor it will be perfectly lawful to place expressly religious things into public arena with no other reason but promote the religion. I.e., 10 commandment case from Kentucky would have been decided differently with Alito on the Court. Kennedy is not as strong on separation of church and state as O'Connor is and Alito's contempt for separation of church and state is one of my biggest problem with Alito. I am sorry but Alito is too extreme and does not deserve to be on the Court.

Cincinnatus -- you need to read your Blackstone and Hale and perhaps White's opinion in Garner. It was no felony to "slay" a fleeing felon under the common law. So the fleeing felon rule was not unheard of at the time of Garner and was indeed a known principle and was most likely in the training of POs at the time (obviously in those states that still had the rule) -- just like Garner and Graham are hammered home now in training.

I agree with White -- the weapons and training and the Penal Codes are such that a broad deadly force law is excessive, but Alito's position would hardly be considered controversial in 1984 and not out of the mainstream. Besides all that -- he was a hired advocate hired to argue his client's position and it appears he did so.

Since the real Cincinnatus was known as a relatively humble man -- dial it down a notch. "Lighten up Francis" in the immortal words of Warren Oates.

Quxxo: "Related: this is precisely why I think law professor bloggers (i.e. Glenn Reynolds, Powerline, et. al.) think its okay to lie about the war."

Your comment would be better if you didn't spoil it with the word "lie." Avocacy isn't lying. The professional standard excludes lying. But one does marshall the facts and characterize them in a way that best suits goals that one has for reasons other than the analysis one is presenting. You also show your own bias by limiting your comment to hawkish bloggers. The anti-war bloggers do it, just for the other side. Your comment, shorn of the glaring overstatement and bias (which isn't the professional standard), is simply the observation that lawyers who blog use their lawyerly skills, often to great success.

I expect professors to not be "advocates" in the sense of using lawyerly skills to marshall the facts and characterize them in a way that best suits goals that one has for reasons other than the analysis one is presenting.

When a lawyer does that in a courtroom, she knows there is someone presenting "the other side".

When a professor does that in a classroom, she knows she is biasing and injuring the students.

When a professor blogger does that on their blog, they know they are neither upholding the ethics and principals of the teaching profession nor honoring the community that depends on their honesty and rewards them with the perks of an entitled, professional class.

Bah!

And other bloggers surely do lie, to quote Sturgeon's law 90% of everything is crap, but I was referring to law prof bloggers which cannot seem to separate advocacy in a courtroom from truthtelling in the public arena.

You also show your own bias by limiting your comment to hawkish bloggers Every observer is biased, c.f. Heisenburg, Picasso, Thompson. Pretending to be objective is wrong, and a lie. But one can be biased, and still discuss the pros and cons of your arguments as well as the opposing side's arguments. See Yglesias and Krugman for excellent examples.

Presenting only one side, and claiming you are objective, and not revealing your own biases, or clarifying that you are speaking as an advocate, or even using your educational background and professional experience as an advocate, is a lie. I don't care which side does that. It is a lie.

However, as it turns out, Reynolds, Hewitt, Volokh are all con law professors.

Am I right in thinking that peer reviewed law articles must take a different tack than the pure advocacy demanded in the courtroom? If so, why should blog, tv interview and/or public articles be more courtroom than law journal, especially when promoted by someone that is not making it clear they are an advocate of one side?

Ann,I hope you're right in terms of Roberts having a modifying pragmatic role in Establishment Clause cases. However, I see no reason at all for this suggestion/hope. What in the Roberts's record gives you reason to think that? I am not familiar with his take on the Establishment Clause, but his jurisprudence as a whole does not inspire any confidence about his "moderate" views. Come on, he was a young lawyer applying for a Solicitor General position with the Reagan administration known for its support of entanglement of church and state. I am sure that he agrees with Alito that the sup. court went too far in separating church and state.

Do you really think that Roberts will be to the left of Kennedy on the Establishment Clause? And Kennedy doesn't have much regard for it (as evidenced by his vote in the 10 commandments case and some other earlier cases).

Granted, we probably won't see the return of prayer in public schools because of Kennedy (not because of Roberts!). But I have no doubt that we'll see the erosion of the separation of church and state and gradual unraveling of O'Connor-influenced jurisprudence on this subject (which is very reasonable).Sad.

What are you talking about? I said nothing at all about abortion or women's rights. I just said that the Supreme Court should deal with the rights that are in the US Constitution because that is their responsibility. Then I see you caliming that I said all that garbage about women's rights and women's bodies and men not having a say in the abortion process. I think you are talking about something I said nothing about in my comments or you are referring to the wrong person. If you are going to comment on my posting, please make it refer to what I said in my posting.

Mark: I just think Roberts came across as a more pragmatic thinker, which makes me think he may not find the strong rule-based approaches (such as neutrality re funding) as appealing as Scalia and Thomas do. That doesn't mean people should feel complacent about what is in the offing. In fact, I think people are going to be shocked at how quickly things change with respect to the Establishment Clause after O'Connor is gone.

Ann,I agree with you. I also think Democrats will be somewhat hesitant to highlight their opposition to Alito's views on the Establishment Clause since the majority of US public probably shares Alito's views on this subject and it's hard to explain legal issues of the Establishment Clause to the public. In contrast, everyone is an expert on abortion and it's relatively easy to demagogue this issue for both sides (i.e., "abortion on demand" and "all abortion is illegal right after the Roe is overturned").I am pro-choice but I also think that in terms of abortion there likely won't be any significant changes to the Court's take on it, largely due to Kennedy's moderating influence. The most that can happen (and I am not even 100% sure about it) that the so called partial birth abortion ruling will be overturned. But, as you absolutely correctly point out, the effect of Alito's appointment on the Establishment Clause will be much more pronounced and probably lasting. It will be evident in funding of religious organizations and religious symbols in public arena.The attitude of the Court to non religious people who don't want to see excessively religious symbold in public life will be the words of Kennedy: Can't they just look away?

Ann, I sense that while you still support Alito, you may be starting to have some reservations about him. If that is the case, I am encouraged. What if anything will cause you to oppose him? Given that he's a very smart man, I highly doubt that he'll be very forthcoming about his positions at the hearings. You did oppose Bork, but what if Bork were as smooth as Alito? I mean, it seems to me that Alito shares the same philosophy as Bork; he's just not bragging about it and is not going to reveal it at the hearings.

Mark: My position on Alito has in fact always been the same. Alito would have to reveal himself as lacking in judicial values, which, as you know, he will not. The fact is Bush has the appointments power, and he won two elections saying he would appoint someone like Scalia or Thomas. I respect that.

Ann,Then why did you oppose Bork?He was also qualified, a very smart man. Probably didn't lack right judicial qualities either.I thought that it was his extreme philosophy that caused you to sign that letter. So, if that's the case, and Alito is demonstrated to have the same philosophy, why wouldn't you oppose him?I respect President's power too, but if he's determined to shift the courts, we should be allowed to oppose it.

I mean, I honestly fail to understand how bright educated people who support constiutional rights can ever support people like Bork, who literally would take the country back to 100 years ago (and it's not an exagerration) in the name of "respect" for the Appointments Power. That power is not absolute; nominees have been defeated for political reasons since George Washington. If one supports appointments of such people to the Supreme Court, I don't think he/she can fairly be considered as moderate. I don't mean to be a judge on what being moderate means but if 1) one knows for sure (close to 100%) that the judge will roll back constitutional rights and 2) he/she supports this candidate, that person cannot be considered as supporting constitutional rights.

Mark: I think the key is to win the presidency and get the next appointment. If Bork had gone on the Court, it would have affected the presidential elections that followed and how future presidents made their selections. I think turning the nomination into a political struggle at the level you seek degrades the Court and makes it less able to enforce rights in the future. Trying to take down Alito by any means possible is very shortsighted. You have to look at the whole picture.

It's not me who turned the Court into political struggle; it's Republicans starting with Reagan who consistently try to stack the Court with very conservative judges who will shift the law in their favored direction. I think it's very unfair to accuse me or Democrats of politicizing the struggle for courts when it's extreme right that politicizes the courts. If they were not doing it and choosing mainstream moderate nominees (as Clinton did for example), we would not have such a politicized process. With due respect, you blame Democrats while conveniently not discussing the fact that Republican presidents since Reagan are injecting politics in their selection of judges, especially Supreme Court Justices. And it doesn't matter that they were elected, the point is that they are trying to stack the courts with very conservative judges, who are selected for primarily political reasons. Again, it is so obvious to me that I completely fail to understand how it's not clear.

And I agree with you that the key is to win Presidency. The truth is, Presidential elections are rarely, if ever, are decided on judicial appointments issue. Most people don't care/don't understand the power that the Supreme Court plays in our lives. That said, of course the key is to win the elections. But given where we are, when the judicial selection process has been politicized since 1980s, it's very unfair to blame Democrats for opposing Republicans' attempt to take down the last independent barrier to their agenda.I don't quite get your point about Bork given that Clinton won the elections; are you saying Bush Sr. or Jr. would have lost if Bork were on the Court? Or they would have made more moderate appointments? Come on.

Mark: Everything would have been different. Maybe Bush Sr. wouldn't have won the next election. Maybe Clinton would have put two hardcore liberals on the Court instead of the consensus nominees he chose. The entire political discourse would have been different if Bork had gone on the Court. The conservative judicial movement would not have gotten the same traction. Etc., etc. If you think everything else would have been the same, you're not making any sense.

Ann, I am sorry but I think your view is highly unrealistic. Bush Sr. didn't win the elections on the judicial nominations issue; he won as a steward of Reagan's legacy and as a result of inept Dukakis' campaign compounded by Willie Horton's ad. There's no question that Bush would have won regardless of whether Bork was on the court. Bork would've been in the minority since Scalia and Thomas were not on the court yet, so the effect of his appointment wouldnt have been apparent yet. Religious Right, if anything, would have been even more active since its appetite would have been wetted by its success in getting Bork on the Court. It is irrelevant who Clinton would have placed on the Court, since ultra right still would have had 5 judges: Roberts, Alito (assuming he's confirmed), Scalia, and Thomas. They could care less about who else is on the Court. The political discourse would not have been significantly different; rhetoric is as strong now as it would have been; the only difference is that religious right would have had 5 judges and not 4.

I find it naive to attempt to justify putting extremists on courts in hopes that it would change the political discourse so that in future presidents who may put extremists won't win.

I correct myself: Scalia was on the Court when Bork was nominated. Still, it doesn't change my point: Rehnquist-Scalia-Bork extreme right wing of the Court would have been in the minority and the effect of Bork's appointment would not have been enough to change the result of 1988 political elections.

Again, even assuming that something would have been different in political landscape, why does it matter? You'd still have an extremist on the courts.I cannot accept it.

If I understand you correctly, political philosophy is now not a valid reason for you to oppose a judicial candidate. Fine, I guess you'd be ok with Ann Coulter and Judge Moore as candidates. After all, they have JD degrees, have not committed any crimes, obviously have legal skills.Judge Moore disregarded the order by Federal Courts but in his view, the order was unconstitutional, and in any case, his primary allegiance is to God. Great, let's put them on courts.

But then I agree with quxxo and others who said that you're not a moderate, at least in my definition of "moderate".

I know I exaggerate a bit, but this is the logical result of your taking ideology out of legitimate reasons to oppose a judge. It's a poor excuse, I think, to claim that maybe it would change a political landscape.

As an attorney, I do see a lot of difference between an advocate and a judge. An advocate's job is to make his side and its facts look as good as possible. Not only do you pick the facts that most help your case, you to some extent pick the law that helps your case too. Technically, you don't ignore adverse precedent, but in reality, you distinguish it. That means pointing out why it really isn't applicable, and other, more favorable, precedent is more applicable.

Judges on the other hand are supposed to sit in the middle and try to divorce themselves from their personal feelings on the cases in front of them (and if they can't they should be recucused).

Let me note that this is not the way things are done in other parts of the world. Even in England, at least in criminal cases, the judges seem to take a more active role, and it is even more so under the Civil Law countries like France, etc. (I remember one long talk I had with Michael Froomkin (U. Miami) where he pointed this out to me in gory detail).

I have yet to see any of Judge Alito's cases where his judicial decisions (or dissents) were not heavily based on the prevailing law of the time. The point is that it is irrelevant what the Supreme Court did afterwards with his cases. Rather, I would suggest that he was doing precisely his job - determining the law as it was at that time. I think that he wouldn't have been doing his job if he had changed the law and then been affirmed, as opposed to sticking with the law, and having the Supreme Court change it.

Finally, as to law review articles. No, they aren't peer reviewed. Rather, most of the review they get is by 3L law review editors. I don't know anywhere else in academia where the students control what is published.

But then, I am not sure whether peer review would work. Much of what is published in law reviews is controversial, and, arguably, somewhat political. And, there is a general liberal bias to law schools, as there is to much of academia today. So, I would think that peer review would slant law reviews even more to the left than they are now. (At least, there is that possibility).

Oh, and I don't see why law profs should be above it all when blogging. In class, yes. But, like judges, they have real lives and real opinions too. But unlike judges, there is no ethical or legal duty to carry this impartiality into the rest of their lives.